The 'right to regulate' in the public interest and the 'police power' in international investment law

Thesis

This thesis examines the extent to which States can rely on their ‘right to regulate’ in the public interest or ‘police power’ in defence of the lawfulness of public interest regulation against claims of indirect expropriation and unfair and inequitable treatment. After examining the historical treatment of public interest regulation and the arguments advanced by States when defending such regulation, this thesis argues that customary international law recognises the police powers doctrine. In the case of indirect expropriation claims, proportionate or reasonable non-discriminatory regulation that is enacted in good faith for a public purpose falls within the State’s police power and will not constitute an indirect expropriation. The police powers doctrine is therefore relevant to determining whether a measure constitutes an indirect expropriation, and operates as a limitation on the scope a State’s obligation.

Further, this thesis argues that the language of ‘right to regulate’ is not particularly helpful (and is somewhat misleading) and States cannot rely on the right to regulate to defend the lawfulness of public interest regulation against claims of indirect expropriation and unfair and inequitable treatment. However, it is argued that the police powers doctrine is not limited in its application to expropriation, but rather it can also apply more broadly to the FET standard. Finally, the thesis proposes using the principles of treaty interpretation in the Vienna Convention on the Law of Treaties to accommodate the police powers doctrine when interpreting expropriation and fair and equitable treatment provisions in international investment treaties.

Authors: Mitchell, K

• DOI: 10.5287/ora-domoz2dnv
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: public international law; sovereignty; foreign investment; human rights; dispute resolution
• Subjects: Public International Law